New spill reporting, response and recovery requirements in British Columbia

As reported by Norton Rose Fulbright, the Province of British Columbia recently brought into force a new land-based spills regime and three new regulations requiring transporters of liquid petroleum products to have provincial spill response plans, to test such plans and to report and clean up spills. The new regulations apply to two categories of people:

  • “regulated persons,” which are rail and highway transporters in possession, charge or control of 10,000 litres (62.898 barrels) or more of liquid petroleum products and pipeline operators with any quantity of liquid petroleum products in their pipeline; and
  • “responsible persons,” which are persons in possession, charge or control of a substance when a spill occurs or is imminent.

The three new regulations are the Spill Contingency Planning Regulation, the Spill Preparedness Recovery Regulation and the Spill Reporting Regulation.

Spill contingency planning

Regulated persons are required to develop and maintain spill contingency plans based on a worst-case scenario spill. Investigations, tests and surveys must be undertaken to determine the magnitude of the risks to human health, the environment and infrastructure from a worst-case spill. Pipeline and rail transporters must have their spill contingency plans in place by April 30, 2018, while trucking firms have until October 30, 2018.

Spill response efforts have failed to contain an estimated 110,000 litres of diesel and other petroleum products from the tugboat Nathan E. Stewart, which ran aground Oct. 13 in the Seaforth Channel near Bella Bella. (Photo Credit: Ian McAllister/CBC)

It is important to note that, while the spill planning obligations may resemble transportation of dangerous goods-type plans, they impose new requirements.

Spill reporting

New spill reporting requirements require a responsible person to immediately report any intentional or unintentional spill of a substance into the environment that may cause, is causing or has caused an adverse effect to water, the environment, human health or property if the volume of the substance exceeds the amounts set out in a schedule to the Spill Reporting Regulation or if the substance has or is likely to enter a body of water, regardless of the volume. Natural gas spills greater than 10 kg and releases from breakages of pipelines or fittings operated above 100 psi must also be reported.

The new regulation expands the scope of spills that must be reported, as it removes the previous volume/quantity threshold for spills to water.

It also expands the information that must be reported.

If a spill occurs or is imminent, a verbal report must immediately be made to the BC Provincial Emergency Program’s spill reporting hotline (1-800-663-3456) by the responsible person. New requirements stipulate the initial report must include the name of the owner of the spilled substance and a description of the source of the spill.

Starting on October 30, 2018, a written report must also be made within 30 days of the spill, or as soon as practicable on the minister’s request. An end-of-spill report must also be made within 30 days of the end of a spill’s emergency response activities.

Spill response

A responsible person must ensure persons with the skill, experience, resources and equipment arrive at the spill site within a prescribed period and activate an incident command system. They must also ensure actions are taken to address the threat or hazard caused by the spill, including assessing, monitoring and preventing the threat or hazard; stabilizing, containing and cleaning up the spill; identifying the immediate and long-term risks and impacts of the spill; and taking steps to resolve or mitigate such risks and impacts.

 

Class Action suit filed against CN Rail for derailment

As reported in the Sudbury Star, a Timmins law firm has sent a letter out to Gogama area residents and cottagers advising that a class-action lawsuit has been filed against CN Rail in connection with the derailment of an oil tanker train and subsequent oil spill that occurred on March 7, 2015.

The letter, signed by James Wallbridge of Wallbridge, Wallbridge Trial Lawyers of Timmins, was to advise residents to sign retainer agreements or to indicate whether or not they wish the law firm to proceed on their behalf.

The derailment and oil spill occurred in the area of the Makami River bridge, on the CN mainline near the village of Gogama, a town in Northeastern Ontario located between Timmins and Sudbury.  An eastbound CN Rail train hauling 94 tank cars had a derailment after riding over a broken rail. In all, 39 tank cars left the track.  Some of the cars fell into the river next to be bridge, exploded and burst into flame. Several of the cars were breached releasing many hundreds of thousands of litres of synthetic crude oil into the river and the surrounding environment.

Gogama train derailment

Wallbridge’s letter said the claim against CN Rail was filed back in July and that there are indications that the clean-up of the oil spill in the area is not properly done yet.

“We are advised by Fred Stanley of Walters Forensic Engineering that the cleanup continues notwithstanding CN and the Ministry of the Environment’s view the oil spill cleanup is complete,” said the letter.

Wallbridge went on to suggest that more environmental testing would be needed early next year.

“We are of the view that next spring may be an appropriate time to review the work that has been done and undertake independent testing. We have spoken to the Ministry of Environment’s legal counsel about testing and have indicated that we anticipate their cooperation in reviewing the overall cleanup.”

Wallbridge also advised that his firm has indicated that the timetable for the class action should be “held in abeyance” pending a review of the cleanup in May and June of 2018.

He said his firm elected to proceed by class action to preserve the limitation period of two years from the date of the occurrence. The class action serves to suspend the limitation period during the certification process, the letter said.

The Gogama-Makami River derailment was the second CN oil train derailment in that area in the winter of 2015. Both occurred along the section of the CN mainline known as the Ruel Subdivision. Another train hauling tank cars had derailed three weeks previous, on Feb. 14, 2015, in a remote bush and wetlands area, about 35 kilometres north of Gogama.

Canada’s Transportation Safety Board filed a report in August saying that a broken section of rail was the cause of the derailment at the Makami River bridge.

Harnessing the regulation of Maritime Dangerous Goods

As reported in Hellenic Shipping NewsTT Club (a leading provider of insurance and related risk management services to the international transport and logistics industry ) and the  International Cargo Handling Coordination Association (ICHCA) have drawn attention to the state of packing in the intermodal supply chain and the need for greater rigour by all stakeholders to improve safety.

Shipping containers at the Port Newark-Elizabeth Marine Terminal in New Jersey, USA (Photo Credit: Captain Albert E. Theberge)

At the recent meeting of the International Maritime Organization’s (IMO) Sub-Committee on the Carriage of Cargoes and Containers (CCC), ICHCA and TT Club made a submission concerning the inspection programmes for Cargo Transport Units (CTUs) implemented by national governments.

Analysing the reports submitted to IMO in previous years, TT Club established that the number of member states reporting, in comparison with those in membership of IMO, has always been less than 10% and currently stands at about 2.5%. Further, the number of inspections performed has never exceeded 80,000, and currently represents something less than 4 per 100,000 packed containers moved.

Deficiencies
The submission drew out two key concerns from the deficiencies found in this small sample. First, there is an apparently deteriorating trend for ‘Placarding and Marking’ failures, which is the key visual risk alert for all supply chain stakeholders. Wrongly placarded units can create a major hazard, as exemplified at a terminal facility in Vancouver in 2015 when a container packed with dangerous goods caught fire, as well as fundamentally undermine the handling of the numerous incidents on board ship.

Perhaps more importantly, ‘Stowage and Securing’ deficiencies, which TT Club has repeatedly reported to be causative in many cargo related incidents, average in excess of 20%.

At ICHCA’s seminar in April 2017 on dangerous goods, hosted by TT Club, reports were given of widespread disregard of dangerous goods regulations, with one shipping line revealing that many shippers use alternative terms for dangerous goods (DG) to avoid surcharges and having to comply with additional measures, including any ship or port restrictions, as well as the regulations themselves.

Calculating the actual number of dangerous goods shipments is complex, but some estimates are that declared volumes comprise up to 10% of all container movements. UNCTAD calculates in its Review of Maritime Transport 2016 that there were approximately 180 million TEU movements in 2016. Assuming 60% of 180 million TEU equates to actual CTUs, 50% of those are laden, of which 10% contain declared dangerous goods, then approximately 5.4 million units annually are packed with dangerous goods.

The state for non-DG…?
It might also be assumed that more care and attention is given to consignments of declared dangerous goods; it may be expected that deficiencies would be more prevalent where more detailed regulations are not deemed to apply. Thus, the findings reinforce experience that packing and securing remains an enormous issue in the unit load industry.

“The findings reinforce experience that packing and securing remains an enormous issue in the unit load industry”
Whilst the International Maritime Dangerous Goods (IMDG) Code is mandatory, the CTU Code is not, albeit it is referenced from the IMDG Code and International Convention for the Safety of Life at Sea (SOLAS). The evidence from recent events is that awareness of the CTU Code is very low and therefore compliance with good practice will be poor.

Cargo Integrity Campaign
It is for this reason that TT Club has teamed with Global Shippers Forum , ICHCA and World Shipping Council to promote the importance of the CTU Code. This ‘Cargo Integrity’ campaign started at European Shipping Week earlier this year, which the IMO Secretary General and Senior Deputy Director attended, and continued during the CCC sub-committee meetings and most recently at the ICHCA 65th Anniversary Conference in Las Palmas. In each instance, the key messages are aligned to the stakeholders in the audience – whether governments, shippers, terminals or carriers – identifying key responsibilities that they can discharge to improve safety in the intermodal supply chain.

“The level of national government reporting is insufficient to draw concrete conclusions by which to steer IMO’s work, improve compliance or increase safety”
In response to a number of suggestions made in the submission to CCC, the sub-committee recognised that the level of reporting is insufficient to draw concrete conclusions by which to steer its work, improve compliance or increase safety, albeit that the absence of reporting should not necessarily lead to the conclusion that inspections are not being carried out. At least one Maritime Administration, which had not reported in recent years, committed to make the CTU inspection regime more robust, as well as to submit a report to the next meeting of CCC in September 2018.

Strengthening compliance culture
CCC also noted the analysis provided by TT Club and ICHCA, inviting governments to provide information on the experience and lessons learned from the application of national CTU inspection programmes. Further, concern was expressed about the high rate of deficiencies and the lack of adherence to the provisions of the IMDG Code.

The TT Club/ICHCA submission also suggested that consideration be given to advances in scanning technologies that may permit improved and risk-based inspections to be carried out more effectively. While not specifically debated, there was general encouragement for the industry and governments to develop more specific ideas for consideration.

In the meantime, the IMO Secretariat committed to improve the ease of reporting, utilising its GISIS methodology, together with recognising that Maritime Administrations could link up the findings of industry inspections that are carried out to the same standard. It is to be hoped that inspection programmes will be ramped up in the coming months in order that more credible data can be shared, as well as engendering an improved culture of compliance globally.

“It is to be hoped that inspection programmes will be ramped up in order that more credible data can be shared, as well as engendering an improved culture of compliance globally”

We hope that you have found the above interesting. If you would like further information, or have any comments, please email us, or take this opportunity to forward to any colleagues who you may feel would be interested.
 

Performance Assessment of Pump and Treat Systems

Researchers at the U.S. Department of Energy’s Pacific Northwest National Library recently released a paper on the Performance Assessment of Pump-and-Treat Systems.

The pump-and-treat (P&T) remediation technology is comprised of three main aspects:  groundwater extraction for hydraulic control and contaminant removal, above-ground treatment, and groundwater monitoring to assess performance.

Pump-and-treat (P&T) is a widely applied remedy for groundwater remediation at many types of sites for multiple types of contaminants. Decisions regarding major changes in the remediation approach are an important element of environmental remediation management for a site using P&T. Performance assessment during P&T remedy implementation may be needed because of diminishing returns, the complex nature of the site and contamination, or other factors.

While existing guidance documents for the performance assessment of pump-and-treat systems provide information on design, operation, and optimization for P&T systems, these documents do not provide specific technical guidance to support remedy decisions regarding when to transition to a new remedy or to initiate closure of the P&T remedy.

In the paper, the researchers describe a structured approach for P&T performance assessment that was developed  using analysis of three example P&T systems. These examples highlight key aspects of the performance assessment decision logic and represent assessment outcomes associated with optimizing the P&T system, transitioning from P&T to natural attenuation, and supplementing P&T with another technology to hasten transition to natural attenuation.

Decision elements for the P&T performance assessment include:

  • Contaminant concentrations and trends
  • Contaminant mass discharge from source areas or at selected plume locations
  • The attenuation capacity of the aquifer
  • Estimated future plume behavior and time to reach remedial action objectives for the site
  • P&T system design, operational, and cost information

Categories of decision outcomes for the P&T assessment include:

  • Initiate P&T remedy closure
  • Continue with existing or optimized P&T
  • Transition to Monitored Natural Attenuation
  • Supplement P&T with other treatment technologies
  • Transition to a new remedy approach

 

Canada: Remediation of Abandoned Mine Sites in Manitoba will take 24 Years

As reported in the Winnipeg Free Press, abandoned mine sites at Lynn Lake and near Leaf Rapids, Manitoba will need to have their wastewater treatment plants operating for the next 24 years to clean up the contamination.  The estimated cost of the running the plants is $62 million over the time frame.  These assertions can be found in Manitoba’s annual public accounts report.

Mines and other developments across the province have left a trail of contaminants in their wake as their life span ends and only waste and by-products remain behind.

The recently released public accounts report for the fiscal year ending March 31, 2017 says Manitoba carries a liability of $281 million to remediate 417 contaminated sites, the worst of them in the province’s north.  The report notes the environmental liability doesn’t include Manitoba Hydro storage sites, which are still being actively used.

The Sherridon mine, located some 100 kilometres from Flin Flon, closed down in 1951, but First Nations people in the area are still suffering the effects and are leery of eating fish and game they need to feed their families, MKO Grand Chief Sheila North Wilson said Wednesday.

“Local hunters and the leadership have strong concerns about the tailings they’ve seen in the water, and how it’s affected their hunting and fishing.  They’re seeing the damage it’s doing to the land, they’re seeing the discolouration of the water,” she said to the Winnipeg Free Press.

North Wilson talked earlier this month to Sherridon-area resident Floyd North, whom she described as a man who lives off the land.

“He’s not sure if he should be feeding that to his family. Floyd and local guides have found dead fish, and fish with tailings in their gills. The vegetation along the water is turning brown earlier,” she said.

Two of the province’s top remediation priorities have been closed for more than 50 years: the Gods Lake mine on the north shore of Elk Island closed in 1943, Sherridon stopped operations in 1951, yet from 1976 to 1998, the provincial government was still conducting environmental assessments. Preparation for remediation only really got going in the last decade.

Capped mine shafts and hundreds of thousands of tonnes of waste rock are all that remain of Lynn Lake’s nickel mine. (Cameron MacIntosh/CBC )

“None of this will get cleaned up in my lifetime, and a lot of it cannot be cleaned up. What a legacy of a series of ignorant and negligent governments,” said Eva Pip, retired University of Winnipeg biologist and a renowned expert on water quality and the health of Lake Winnipeg.

The province says mining pumps $2 billion annually into the Manitoba economy and operates in a responsible and environmentally-sound manner — now.

However, there are 149 orphaned and abandoned mines first formally identified in 2000 for remediation “that were abandoned decades ago and continue to pose health and safety problems,” says the province. In some cases, the companies are part of the cleanup.

Pip said she’s been trying to get information for years on the plight of former mine sites and the lakes and rivers around them.

“I see that the number of sites has increased from the last time I requested information, when there were 300-plus identified sites. Many of them are abandoned, where the mining company has walked away, or no longer exists,” Pip said.

“Some are hazardous materials that were put in mine shafts that are now abandoned and flooded. Some are lakes where mining companies were allowed to dump chemical effluent for decades,” such as the Bernic Lake tantalum operation, she said.

Some are arsenic tailings fields going back to the 1930s, said Pip.

“There are also old, underground fuel storage tanks. Some are aboveground fuel storage tanks on northern First Nations reserves. Some are on permafrost. Some are municipal and park landfills that are became defunct when the province so ‘thoughtfully’ privatized landfills. Some are radioactive sites,” such as in Pinawa, Pip said. “There are many many others.”

Sustainable Development is the Progressive Conservative government’s environment ministry, but defers to the department of growth, enterprise and trade on remediating contaminated sites. Manitoba Hydro tracks its own sites.

“Manitoba Hydro does have a number of active sites (such as at Waverley Service Centre), where we dispose of polychlorinated biphenyls (PCBs) as per federal legislation to phase out the use PCBs by Dec. 31, 2025. As these continue to be active sites, we have no plans for remediation, as pointed out in the public accounts,” said spokesman Bruce Owen.

However, “It’s important to continue to clean up these sites so that future generations have a safe and sustainable environment. It’s very concerning if this government is letting budget cuts affect our environmental responsibilities,” said NDP environment critic Rob Altemeyer.

A Manitoba official, speaking on condition of anonymity, said remediations of the Ruttan site near Leaf Rapids (some 900 km north of Winnipeg) and the former Viridian Inc. mine in Lynn Lake (some 1,000 km north of the provincial capital) are well under way. The province spent $11.8 million on Ruttan last year, $228,000 on the Viridian mine.

The Leaf Rapids remediation cost $76 million between the province and former mine operator Viridian. But public accounts say the water-treatment plant will be needed for a long time yet.

“Manitoba owns a portable water-treatment plant that services the Lynn Lake site and is utilized occasionally to treat water from the site for discharge to bring the water quality up to federal standards,” the provincial official said.

When the Ruttan mine closed in 2002, Manitoba and Hudson Bay Mining and Smelting Co. Ltd. agreed to share the responsibility, said the province.

“As part of the Ruttan remediation plan, a water-treatment plant was constructed and operates annually during non-freezing conditions to ensure that water discharged from site meets federal water quality guidelines. The requirement for water treatment is expected to decline over time as the remediation takes effect,” said the official.

Teck Coal Ltd. fined $1.4 million for Toxic Release

Teck Coal Limited recently pleaded guilty to three counts of contravening the Canadian Fisheries Act in the Provincial Court of British Columbia.   The court ordered the company to pay a penalty of $1,425,000, which will be directed to the federal Environmental Damages Fund, and used for purposes related to the conservation and protection of fish or fish habitat or the restoration of fish habitat in the East Kootenay region of B.C.  Additionally, Teck Resources will post information regarding this conviction on its website.  As a result of this conviction, the company’s name will be added to the Environmental Offenders Registry.

Teck Coal’s Line Creek Operations is located in southeastern British Columbia.  On October 17th, 2014, enforcement officers from Environment Canada and Climate Change (ECCC) launched an investigation following a report that fish had been found dead in ponds connected to Line Creek which runs adjacent to the coal mining operation.  During the investigation, ECCC enforcement officers found that the effluent from the water treatment facility going into Line Creek was deleterious to fish.  Numerous dead fish were found in the Line Creek watershed as a result of this discharge, including Bull trout.  Bull trout are identified as a species of special concern in this area of British Columbia.

The company has a permit to discharge treated effluent into the Line Creek, however in the fall of 2014, there was a malfunction of the treatment system.  As a result, toxic levels of nitrate, phosphorus, selenium and hydrogen sulfates entered the Line Creek, subsequently killing over 74 fish.

Line Creek is identified by the Government of British Columbia as part of a “Classified Water” system.  This provincial classification means that the water system is seen to have a high fisheries value and it requires special fishing licenses.

Teck’s West Line Creek Active Water Treatment Facility cost $120 million to construct.  The facility treats up to 7,500 m3 (2 million gallons) of water per day – enough to fill three Olympic-sized swimming pools.  Selenium concentrations are reduced by about 96% in treated water, to below 20 parts per billion.  Nitrate concentrations are reduced by over 99% in treated water, to below 3 parts per million.

Teck’s West Line Creek Active Water Treatment Facility

Teck’s Line Creek operation produces steelmaking coal – also called metallurgical coal or coking coal — which is used to make steel.  The processed coal is transported by sea to the Asia-Pacific region and elsewhere.  The current annual production capacities of the mine and preparation plant are approximately 3.5 and 3.5 million tonnes of clean coal, respectively. Proven and probable reserves at Line Creek are projected to support mining at planned production rates for a further 23 years.

In-Situ Remediation of Tetrachloroethylene and its Intermediates in Groundwater

Researchers from Tianjin University in China recently released results from a study that showed the results of the use of an anaerobic/aerobic permeable reactive barrier at removing tetrachloroethylene (also known as “perc”) and its intermediates in groundwater.

The anaerobic/aerobic permeable reactive barrier (PRB) system that was tested consisted of four different functional layers and was designed to remediate PCE-contaminated groundwater.  The first (oxygen capture) layer maintained the dissolved oxygen (DO) concentration at <1.35 mg/L in influent supplied to the second (anaerobic) layer.  The third (oxygen-releasing) layer maintained DO concentration at >11.3 mg/L within influent supplied to the fourth (aerobic) layer.  Results show that 99% of PCE was removed, mostly within the second (anaerobic) layer.  The toxic by-products TCE, DCE, and VC were further degraded by 98, 90, and 92%, respectively, in layer 4 (aerobic). The anaerobic/aerobic PRB thus could control both PCE and its degradation by-products.

Photo Credit: US EPA

Tetrachloroethylene is a manufactured chemical that is widely used for dry cleaning of fabrics and for metal-degreasing. It is also used to make other chemicals and is used in some consumer products.

Tetrachloroethylene is present in the subsurface at contaminated sites, often as a result of its inappropriate disposal and release from dry-cleaning and degreasing facilities or landfills.

CERCLA Trumps As-Is Sales

By Steven L. Hoch, Attorney, Clark Hill

A federal court in Alaska assessed responsibility against the City of Fairbanks (City) for remediation costs found necessary to clean up property it previously owned.  The court concluded that the City should have mitigated the problem or at least warned the purchaser about the contamination, even though the property was sold “As-Is”.  Under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) liability is assessed without reference to cause.  Further, the court said that numerous courts have held that CERCLA liability cannot be defeated by contract, unless specifically and clearly addressed in the contract language.

In Gavora, Inc. v. City of Fairbanks , Case No. 4:15–cv-00015-SLG, BL 256894 (D. Alaska July 25, 2017), the City owned two parcels of land and Gavora held leasehold on one of the parcels. For a considerable length of time, a dry cleaning business operated in the shopping center located on their parcel.  Eventually, the contamination drew the attention of the State of Alaska, who told the City about the contamination and that they suspected the contamination migrated from that parcel to the other.  While the State did not verify the findings, the district court found it clear that the City knew or should have known that the first parcel was also contaminated.

Fairbanks Mall – Satellite Image showing borehole and monitoring well locations as well as PCE contamination levels

The City sold the first parcel to Gavora on an “As-Is, Where-Is” basis.  This sale occurred 10 years after the City first learned of the contamination on the second parcel.  When the purchase took place, Gavora did not perform its own environmental assessment.  Five years later, contamination was discovered on the first parcel owned by Gavora.  Lacking options, Gavora remediated the parcel and sued the City of Fairbanks for contribution.

Even though the sale was “As-Is”, the court nevertheless held the seller liable. Further, the court allocated 55% of the costs to the City and 45% of the costs to the current owner. The court rationalized that this allocation was appropriate because (1) the city knew or should have known of the contamination, yet failed to inform the purchaser; (2) the current owner made substantial corrective action efforts upon learning of the problem whereas the City took no action, and (3) it would be inequitable to hold the current owner responsible for contamination occurring prior to its master lease, but the court could not “effectively apportion the contamination”, but (4) the current owner would obtain a greater benefit than the prior owner from the remediation.

In the final analysis this case affirms that “As-Is” does not exculpate a seller from CERCLA liability, and that not disclosing contamination even when it did not make any representation to the contrary. As this was a district court opinion, it does not have significant legal value, but should not be dismissed out of hand when confronting similar issues.

 

This article was first published on the Clark Hill website.

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About the author

Steven Hoch has over 40 years of experience with both federal and state environmental laws and regulations in the context of permitting, regulatory proceedings, litigation, enforcement actions, water supply, public policy formation, and advice.  His work includes contamination of land and ground and surface water.  Steven has critical experience in the areas of environmental law and the federal and state Safe Drinking Water Acts, Title 23, water supply, and the mechanics of water distribution.  His experience also extends to groundwater modeling and water quality testing.  He also has significant experience in hazardous substances and waste handling practices, remediation, soil erosion, and claims of toxic exposures

Steven has in-depth experience working with numerous public water systems throughout the state.  He has also established a sterling reputation for his work with the Regional Water Quality Control Boards, the Department of Toxic Substance Control, and the United States Environmental Protection Agency both in the administrative and litigation.  His clients range from the country’s largest municipal water agency to individuals selling or buying contaminated sites.

Steven often takes primary roles in many environmental trials, and has served as liaison counsel for groups or parties at the request of fellow counsel.  He has been involved in several landmark cases, including acting as PG&E’s counsel in the case made famous by the movie Erin Brockovich.

 

The Ninth Circuit Reiterates That “Knowingly” Handling Hazardous Waste Without a Permit Is a General Intent Crime Under RCRA

By Richard E. Stultz

Max Spatig was convicted of knowingly storing and disposing of hazardous waste without a permit and sentenced by the U.S. District Court for the District of Idaho to 46 months in prison under 42 U.S.C. § 6928(d)(2)(A). See U.S. v Spatig (2017) 2017 WL 4018398.  At trial, Spatig had sought to introduce evidence on his diminished capacity arguing that he did not have the required state of mind for the offense.  The district court, however, granted the government’s motion in limine to exclude all such evidence because § 6928(d)(2)(A) under the Resource Conservation and Recovery Act (RCRA) only required general intent and diminished capacity was not a defense to a general intent crime.

For years, Spatig had operated a business which used paint and paint-related materials.  Over time Spatig had accumulated several used containers of this material, some of which ended up on his residential property in Idaho.  In 2005, the county discovered the several containers and reported it to the Idaho Department of Environmental Quality (DEQ). Working with Spatig, DEQ collected and destroyed most of the containers.  In 2010, Spatig was again found to be storing used containers of paint and paint related materials on another of his properties.  This time the job was too big for local or state authorities so the U.S. Environmental Protection Agency (EPA) was notified.  The U.S. EPA determined that the waste was hazardous and that a cleanup was necessary. The U.S. EPA removed approximately 3400 containers and spent $498,562 on the cleanup.  The EPA charged Spatig with violation of § 6928(d)(2)(A) for knowingly storing and disposing of a hazardous waste without a permit from either DEQ or the U.S. EPA.

Paint cans at a property off the Archer-Lyman Highway near Rexburg, Idaho

Spatig appealed his trial conviction and argued on appeal that § 6928(d)(2)(A) required specific intent.  He also took issue with the district court’s enhancement of his base sentence arguing that the cleanup did not result in a “substantial expenditure.”  The Ninth Circuit Court of Appeals, however, disagreed with Spatig and affirmed the district court.

Under § 6928(d)(2)(A), a person may not “knowingly” treat, store or dispose of a hazardous waste without a permit.  According to the U.S. Supreme Court, “‘knowingly’ merely requires proof of knowledge of the facts that constitute the offense.”  The Ninth Circuit had also held that “knowingly” generally does not require specific intent.  In other words, a defendant’s particular purpose or objective is not required.  The Ninth Circuit previously rejected the argument that § 6928(d)(2)(A) required that a defendant know there was no permit for disposal.  The court held there that “knowingly” only required “that a defendant be aware that he is treating, storing, or disposing of something that he knows is hazardous.”  The court found that RCRA was a public-welfare statute and that “§6928(d)(2)(A) fits within a class of general-intent crimes that protect public health, safety, and welfare.”  Because § 6928(d)(2)(A) only requires general intent, the Ninth Circuit upheld the district court’s exclusion of evidence at trial of Spatig’s state of mind.

Spatig argued that his sentence enhancement was error because the cleanup did not constitute a “substantial expenditure” required under the federal sentencing guidelines (U.S.S.G. § 2Q1.2(b)(3)).  The Ninth Circuit refused to establish a bright-line rule but noted that sister circuits had found that expenditures under $200,000 were “substantial.”  In upholding the district court, the Ninth Circuit noted that in the instant case the $498,562 underestimated the total cost because it did not include the local agencies’ expenditures.

This holding underscores the long-standing general purpose of environmental laws to protect the public welfare. These statutes do not generally require specific intent—only knowing of the act is required.

This article was first published on the Clark Hill website.

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About the author

Richard E. Stultz brings over eighteen years of experience in the environmental, land development and petroleum industries to bear in his practice of law. In addition to his law degree, he also earned a Bachelor of Science in Petroleum Engineering. Richard’s practice is currently focused on environmental litigation.

Richard is experienced in law and motion filings and hearings. He is practiced in written discovery and legal research. Richard has even co-written a First Amendment argument submitted before the California Court of Appeal. He is familiar with California’s environmental laws and regulations.

While in law school, Richard interned at the Los Angeles City Attorney’s Office in the Real Property/Environment division. He researched and prepared a key memorandum regarding good will compensation in eminent domain.

Tribunal gives Ontario Environment Ministry Broad Preventative Powers over Migrating Contamination

by Stanley D. Berger

On September 1, 2017, the Ontario Environmental Review Tribunal in the matter of Hamilton Beach Brands Canada Inc. et al. v. the Director, Ministry of the Environment and Climate Change made a preliminary ruling that the Director had jurisdiction to make an order under s.18 of the Environmental Protection Act (EPA) requiring a person who owns or owned, or has or had management or control of a contaminated undertaking or property to delineate contamination that had already migrated to off-site properties. The property in question, formerly a small-appliance manufacturing business, was contaminated and the various contaminants were of concern to the Ministry, having migrated to other Picton residential, commercial and institutional properties where they might be entering nearby buildings by vapour intrusion. Section 18 of the EPA provides that the Director may make orders preventing, decreasing or eliminating an adverse effect that may result from the discharge of a contaminant from the undertaking or the presence or discharge of a contaminant in, on or under the property. The Director’s Order was challenged on three grounds:

  1. The adverse effect the Director could address was limited to a future event or circumstance (given that s.18 is prospective and preventative);
  2. The adverse effect had to relate to the potential off-site migration of a contaminant that was on an orderee’s property at the time the order was made;
  3. The order could require work only on site but not off-site, to address the risk of an adverse effect.

The Tribunal rejected all three arguments, reasoning that adverse effects resulting from contamination were frequently ongoing rather than static, with no clear line between existing and future effects. The Tribunal looked to the purpose of the EPA which was to protect and conserve the natural environment and found the orderees’ arguments were inconsistent with this purpose. Contamination and adverse effects were not constrained by property boundaries and therefore it was immaterial whether the contaminant was on the orderee’s property at the time the order was made. Finally, the list of requirements that could be ordered under s.18(1) EPA included off-site work. _________________

About the Author

Mr. Berger has practiced regulatory law for 36 years. He is a partner at Fogler Rubinoff LLP. He is certified by the Law Society of Upper Canada as a specialist in Environmental Law. He represents nuclear operators and suppliers in regulatory and environmental matters and in the negotiation of risk clauses in supply contracts and government indemnity agreements.He has prosecuted and defended environmental , occupational health and safety and criminal charges . He represents clients on access to information appeals before Ontario’s Freedom of Information Commission. He has also represented First Nations seeking equity partnerships in renewable energy projects. He started as an Assistant Crown Attorney in Toronto (1981), became the Deputy Director for Legal Services /Prosecutions at the Ministry of the Environment (1991) and Assistant General Counsel at Ontario Power Generation Inc.(1998-2012) During his 14 years at OPG, Mr. Berger won the President’s Award for his legal contribution to the Joint Review Panel environmental assessment and licensing hearing into the Nuclear New Build Project for Clarington . He won a Power Within Award for his legal support of the Hosting Agreement with local municipalities for the project to create a long term deep geologic repository for low and intermediate nuclear waste in Tiverton, Ontario.